Applying for jobs is a challenging task under the best of circumstances. Doing it with a criminal record adds a lot more stress and uncertainty to the mix.
In recent years, however, the challenges faced by former offenders attempting to reintegrate into society has drawn the attention of lawmakers at various levels of government. Thirty-seven states and the District of Columbia have passed laws limiting public sector employers from inquiring about applicant criminal history prior to extending a conditional job offer (the exact contours of these laws vary widely). Fifteen of those states have extended the ban to private sector employers, albeit again with widely varying caveats.
On the federal level, the Fair Chance to Compete for Jobs Act of 2019, more commonly known as the Fair Chance Act or Ban the Box Act, now prohibits federal agencies and contractors from requesting criminal history information from applicants before making a conditional offer of employment. But as is the case with its state law counterparts, there are some exceptions that limit the utility of this law for job seekers in certain industries.
Specifically, the Fair Chance Act prohibition regarding criminal history inquiries does not apply to applicants being appointed to positions that:
- require by statutory authority an inquiry before extending an employment offer
- require a determination of eligibility for access to classified information
- have been designated as sensitive regarding national security
- are dual status military technicians
- are Federal law enforcement officers
That excludes most federal government and contracting jobs in the national security sector but reflects the complicated legal landscape surrounding security clearance determinations and similar personnel credentialing. Decisions surrounding personnel trust and access are largely discretionary matters left to the expertise of officials in the executive branch. Because classified information access decisions, in particular, stem from the President’s Commander-in-Chief authority absent explicit congressional action, applicants seeking to challenge the denial of a security clearance (or a job that requires one) under the Fair Chance Act typically won’t get far.
But that doesn’t mean that the applicant can’t ultimately get the required security clearance or favorable credentialing decision. Many criminal records can be mitigated with the passage of time and other evidence of rehabilitation. The trick for applicants is finding an employer willing to take a chance and submit the request to government security officials for adjudication.
Federal sector applicants who experience challenges in that regard should understand that, even with national security roles excluded, the federal civilian and contracting world is vast and filled with opportunities that are covered by the Fair Chance Act. The key is to seek and apply for roles at agencies (and the contractors that support them) whose mission is rooted squarely in the corners of government that don’t deal with defense, intelligence, law enforcement/public safety, or foreign affairs. That could include federal departments and agencies like Agriculture, Interior, the Postal Service, and the Small Business Administration, to name just a few.
Of course, this may require familiarizing oneself with the complex alphabet soup of government agencies and learning the lingo of government hiring – but that’s a small price to pay in exchange for the stability, benefits, and other rewards typically offered by a career in the federal sector.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
